Barabin v. Scapa Dryer Fabrics, Inc.

ORDER TO SHOW CAUSE WHY ATTORNEY JAMES NEVIN AND LAW
FIRM BRAYTON PURCELL LLP SHOULD NOT BE SANCTIONED

JAMES
L. ROBART, UNITED STATES DISTRICT JUDGE.

Before
trial on Monday, April 2, 2018, Plaintiff Geraldine Barabin
and Defendant Scapa Dryer Fabrics, Inc. ("Scapa")
asked the court to consider the admissibility of Exhibits
134, 135, 136, 176, 177, and 185. Exhibit 176 is a report
written by IC Sayers[1]in the 1960s while he was employed at Union
Carbide U.K. Limited, a company in the United Kingdom
("UK"). (2013 Fearnhead Dep. (Dkt. # 710-2) at
146:14-147:16.) The report was "written to show the
concern on toxicological grounds of those people involved
with asbestos in the UK." (Id. at 148:3-6.)

Ms.
Barabin's counsel James Nevin sponsored Exhibit 176 with
the statement that Mr. Sayers subsequently worked at Scapa
and thus, his knowledge about the hazards of asbestos
dust-evidenced by Mr. Sayer's 1967 report-accompanied him
to Scapa. Thus, Mr. Nevin sponsored Exhibit 176 to
demonstrate Scapa's knowledge of the hazards of asbestos
dust. The court ruled that it would not allow the admission
of Exhibit 176 because it is third-party hearsay, but the
court allowed testimony regarding the historical availability
of literature detailing the hazards of asbestos at the time.

After
the court's rulings on the various exhibits, Mr. Nevin
called Dr. Richard Cohen, who testified to the historical
record of the public knowledge regarding the hazards of
asbestos. Dr. Cohen did not discuss Exhibit 176.

Later
that afternoon, Mr. Nevin read portions of a deposition
previously taken of Scapa corporate representative, Ivan
Fearnhead. Mr. Fearnhead was asked in his deposition about
Mr. Sayers and Mr. Sayers's report-the same document that
the court excluded as Exhibit 176.[2] As part of his reading, Mr.
Nevin quoted portions of Mr. Sayers's report to the jury,
stating that mesothelioma can occur in people after a brief
exposure and may even occur after a single exposure. Scapa
objected. The court sustained the objection and struck the
testimony.

Mr.
Nevin's reading of Exhibit 176 directly contradicts two
of the court's earlier rulings: (1) the court's
Daubert order on causation, which held that experts
who would testify that an individual exposure could be a
cause of mesothelioma in a total exposure analysis were
"unreliable and must be excluded" (2/12/18 Order
(Dkt. # 698) at 30); and (2) the court's exclusion, that
very morning, of Exhibit 176 as inadmissible hearsay
(see 4/2/18 Min. Entry (Dkt. # 736)).

Mr.
Nevin offered four justifications for his conduct, none of
which excuse his failure to follow the court's
rulings.[3] First, Mr. Nevin argued that Scapa had
already objected to-and the court had already permitted-the
offending portion of the deposition. But at the time of that
deposition review, the court had not yet ruled on the
admissibility of Exhibit 176. Thus, the court had not, and
could not have, considered Scapa's objection regarding
the quoted portions from Exhibit 176.

Second,
Mr. Nevin insisted that the court's ruling that morning
was limited to the admission of the document and that the
court had not made any ruling on discussion of the document.
This attempt to rewrite history is of no avail. The court
expressly denied admission of Exhibit 176. The court
permitted testimony about the historical availability of the
literature at the time, but that ruling in no way allowed
quoting from a document that the court expressly excluded.

Third,
Mr. Nevin argued that the court had not excluded Exhibit 176
at all; instead, Mr. Nevin maintained that the court had
merely determined that the document was not admissible at
that point in time. Again, Mr. Nevin misstates the record.
The court's ruling regarding admissibility was that it
would not allow the admission of Exhibit 176. The court did
not qualify this ruling in any way, including by reserving
the issue for a later time.

And
fourth, Mr. Nevin attempted to shift the blame to Scapa,
contending that if Scapa had a problem with this portion of
the deposition, Scapa should have raised the issue.
Notwithstanding the fact that Scapa immediately objected at
the time of the reading, Scapa's duty to object does not
alter Mr. Nevin's duty to adhere to the court's prior
rulings.

The
court has the inherent power to impose sanctions based on a
failure to comply with the court's orders. See
Chambers v. NASCO, Inc.,501 U.S. 32, 43 (1991);
Halliday v. Spjute, No. 1:07-cv-00620-AWI-GSA, 2015
WL 4922762, at *4 (E.D. Cal. Aug. 18, 2015). Based on the
behavior described above, the court ORDERS Mr. Nevin to show
cause why it should not issue sanctions. The court is
considering issuing monetary sanctions against Mr. Nevin in
the amount of $1, 000.00 and placing a written reprimand of
Mr. Nevin and Brayton Purcell LLP on the docket. Mr.
Nevin's response may not exceed ten (10) pages and is due
no later than fifteen (15) days after the entry of this
order.

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